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PETITIONER: T.A. ABDUL RAHMAN

       Vs.

RESPONDENT: STATE OF KERALA AND ORS.

DATE OF JUDGMENT23/08/1989

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) RAY, B.C. (J)

CITATION:  1990 AIR  225            1989 SCR  (3) 945  1989 SCC  (4) 741        JT 1989 (3)   444  1989 SCALE  (2)388  CITATOR INFO :  R          1990 SC 231  (18)  D          1990 SC1446  (15)  R          1990 SC1597  (16)

ACT:     Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling   Activities   Act,  1974--Section   3(1)(iii)   & 3(1)(iv)--Detention  order-Time lag between the  passing  of the  detention order and the actual arrest--Whether  affects the    subjective    satisfaction    of    the     detaining authority--Legality of such detention order--Challenged.

HEADNOTE:     This appeal has been filed by the brother of the  detenu T.A.  Sirajudeen  who was detained pursuant to an  order  of detention  passed  by  the first  respondent  under  Section 3(1)(iii)  and 3(1)(iv) of the Conservation of  Foreign  Ex- change  and  Smuggling Activities Act, 1974 with a  view  to preventing  the  said detenu to take part in  the  smuggling activities of Gold. The circumstances under which the deten- tion order in question was passed may now be stated.     On 30.11.1986, Superintendent of Central Excise, Manjeri Range  searched the residential premises of the  detenu  but did not discover any contraband goods. However on  question- ing  the  detenu confessed that he had burried  eleven  gold biscuits  in the back yard, which were recovered after  dig- ging the ground and the statement of the detenu was recorded under Section 108 of the Customs Act, that very day.     On  9.12.1986 again the Authorities  concerned  searched the  residence  of the detenu in the belief that  there  was concealment  of  more  gold. During the  search  the  detenu pointed out to the Superintendent one packet which had  been placed in the thatched roofing of the house.     The  detaining authority taking into  consideration  the fact of seizure effected on two occasions and the  statement of  the detenu admitting his involvement in the  prejudicial activities  mentioned  in the grounds of  detention  reached subjective  satisfaction  and passed the impugned  order  of detention  on 7.10.87. The detenu was arrested on  18.1.1988 and  detained in Central Prison, Trivandrum  from  19.1.1988 onwards  Grounds  of detention and other  relevant  material

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were  furnished to the detenu on 21.1.1988. The detenu  made representation  for  revocation of the  detention  order  on 25.1.1988 which was rejected 946 on  11.4.1988. The first respondent made a  reference  under Section 8  of the Act on 5.5.88 to the Advisory Board  which reported  that in its opinion sufficient cause  existed  for the detention of the detenu.     The appellant challenged the detention of his brother in the High Court by means of Writ Petition but, having failed, he filed this appeal by special leave.     The  appellant  primarily urged two  contentions  before this Court. It was urged that there was no proximity in time to provide a rational nexus between the alleged  prejudicial activity and the passing of the impugned order of  detention after 11 months i.e. on 7.10.87 and as there was no reasona- ble  and satisfactory explanation for the said  long  delay, the  detention order is liable to be quashed on  the  ground that  the credible chain between the grounds of the  alleged criminal  activities  and  the purpose  of  detention  stood snapped.  The delay throws doubt on the genuineness  of  the subjective satisfaction arrived at by the detaining authori- ty.  Secondly it was contended that the representation  sub- mitted  by  the detenu on 25.1.88 challenging  the  impugned order  clamped on him had been disposed of by a delay of  72 days  i.e.  on  11.4.88 and this long  and  avoidable  delay vitiates  the detention order being violative of Art.  22(5) of the Constitution.     The first respondent in the counter affidavit  explained the delay and attributed the same to the extensive search of various  premises  in different places  and  examination  of persons  apart  from departmental delays. It is  only  after completing  the necessary investigation customs  authorities sponsored the case for detention of the detenu. Allowing the appeal, this Court,     HELD:  There  is no denying the fact that  the  impugned order has been passed after lapse of 11 months from the date of seizure of the eleven gold biscuits from the back  court- yard  of the house of the detenu. The test of  proximity  is not a rigid or mechanical test by merely counting number  of months  between the offending acts and the order  of  deten- tion.  However, when there is undue and long  delay  between the  prejudicial activity and the passing of  the  detention order,  the  court has to scrutinise whether  the  detaining authority  has  satisfactionly  examined such  a  delay  and afforded a tenable and reasonable explanation as to why such a delay has occasioned and further the court has to investi- gate  whether the causal connection has been broken  in  the circumstances of each case. No hard and fast rule 947 can precisely be formulated and guidelines can be laid  down in that behalf. [951G-952A]     When  there  is  unsatisfactory  and  unexplained  delay between  the date of the order of detention and the date  of securing the arrest of the detenu, such a delay would  throw considerable  doubt  on the genuineness  of  the  subjective satisfaction of the detaining authority. [954C]     See  Gora  v. State of West Bengal, [1975]  2  SCR  996; Hemlata Kantilal Shah v. State of Maharashtra, [1981] 4  SCC 647; Golam Hussain @ Gamal v. Commr. of Police of Calcutta & Ors., [1974] 4 SCC 530; sk Serajul v. State of West  Bengal, [1975]  2  SCC  78; Rekhaben Virendra Karadia  v.  State  of Gujarat  & Ors., [1979] 2 SCR 257; Harnek Singh v. State  of Punjab, [1982] 1 SCC 116; Shiv Ratan Makin v. Union of India and  Others, [1986] 1 SCC 401; Smt. K. Aruna Kumari v.  Gov-

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ernment  of  Andhra  Pradesh & Ors., [1988] 1  SCC  296  and Rajendra  Kumar Natvarlal Shah v. State of Gujarat  &  Ors., [1988] 3 SCC 153.     The Court in the instant case, noticed from the  Counter affidavit filed on behalf of the first Respondent, that  the detaining authority has attempted to explain the laxity that has  occasioned in passing the impugned order but  miserably failed  in explaining the delay of three months in  securing the  arrest  of the detenu from the date of passing  of  the order and keeps stunned silence on that score. Counsel  when queried  by the Court whether he could give any  reason  for this  undue  delay in arresting the detenu on  18.1.1988  in pursuance  of the impugned order made on 7.10.1987,  frankly admitted  that he could not do so. Under the  circumstances, the  Court held that leaving apart the question of delay  in passing  the order of detention, the fact remains  that  the detaining authority has failed to explain the long delay  in securing the arrest of the detenu after three months of  the passing  of  the detention order  and  this  non-explanation throws  a considerable doubt on the genuineness of the  sub- jective  satisfaction of the detaining  authority  vitiating the validity of the order of detention. [954E-955A]     The  long interval in receipt of the representation  and the  comments of the Collector of Customs, Cochin,  indicate the  casual and indifferent attitude, displayed by  the  au- thorities  concerned  dealing with the  representation.  The manner  in  which  the representation has  been  dealt  with reveals a sorry state of affairs in the consideration of the representation made by the detenu. [955G-956A] 948     The Court took firm view that the representation of  the detenu has not been given prompt and expeditious  considera- tion and was allowed to lie without being properly  attended to.  The  delay of 72 days in the  absence  of  satisfactory explanation is too long a period for ignoring the  indolence on  the  part of the concerned  authority.  The  unexplained delay  in  disposal of the representation of the  detenu  is violative  of  Article 22(5) of the  Constitution  of  India rendering the order of detention invalid. [956H-957B]     The  Court  set aside the judgment of  the  High  Court, quashed the order of detention and directed that the  detenu be set at liberty forthwith. [957C]     Rama  Dhondu Borade v. Shri V.K. Saraf, Commissioner  of Police & Ors., [1989] 1 Scale 22.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  3 18 of 1989.     From the Judgment and Order dated 15.6.88 of the  Kerala High Court in Original Petition No. 3299 of 1988. R. Sasiprabhu and P.K. Manohar for the Appellant.     B. Dutta, Additional Solicitor General, P. Parmeshwaran, Pramod Swarup and T.T. Kunhikannan for the Respondents. The Judgment of the Court was delivered by     S. RATNAVEL PANDIAN, J. This appeal under Article 136 of the  Constitution  of India is preferred by  the  appellant, Abdul Rahman questioning the validity and correctness of the order  of  detention  passed  by  the  first  Respondent  on 7.10.1987,  in exercise of the powers conferred  by  section 3(1)(iii)  and 3(1)(iv) of the Conservation of  Foreign  Ex- change  and  Prevention of Smuggling  Activities  Act,  1974 (Central  Act  52 of 1974) (hereinafter referred to  as  the ’Act’)  whereby detaining the appellant’s brother  Sri  T.A.

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Sirajudeen  @ Siraj (the detenu herein) with a view to  pre- venting the detenu from engaging in transporting or conceal- ing  or  keeping smuggled gold or dealing in  smuggled  gold otherwise than by engaging in transporting or concealing  or keeping smuggled gold. Though  the  impugned  order was passed  on  7.10.1987,  the detenu 949 was arrested on 18.1.1988 and detained in the Central  pris- on,  Trivandrum from 19.1.1988 onwards. The detenu was  fur- nished  with  copies of the grounds of detention  and  other connected material documents on 21.1.1988. The detenu made a representation  to the third Respondent praying for  revoca- tion of the detention order on 25.1.1988 which was  rejected on  11.4.1988. Meanwhile on 11.2.1988 a declaration  by  the third  Respondent  under Section 9(1) of the Act  was  made, whereby the detenu was ordered to be detained for a  contin- ued  detention  for a further period of 6  months  over  one year. The first Respondent made a reference under section  8 of  the  Act on 5.5. 1988 to the Advisory  Board  which  has reported  that there is in its opinion sufficient cause  for the detention of the detenu. The material facts which neces- sitated  the passing of the detention order can  be  briefly stated thus:     On 30.11.1986, Superintendent of Central Excise, Manjeri Range  and  party searched the permanent  residence  of  the detenu  in his presence which did not result in the  seizure of any contraband goods or the recovery of any incriminating documents.  But  on questioning by the officer,  the  detenu confessed  that  he had buried eleven gold biscuits  in  the backyard  of his house. He dug up the spot and produced  the relavent  gold biscuits which were kept concealed under  the ground. Each of the gold biscuits was found wrapped in black carbon paper bearing foreign markings and weighing 10  tolas each  with the purity of 24 carats. The total weight of  the eleven gold biscuits was 1282.600 gms., the market value  of which as on that date was Rs.3,14,237. The contraband  goods were  seized under a Mahazar. On 30.11.1986 a statement  was recorded  from the detenu by the Superintendent of the  Cen- tral  Excise under section 108 of the Customs Act  in  which the  detenu had given a detailed note of his involvement  in the smuggling activities. On 9.12.1986 also the Superintend- ent  of Central Excise searched the residence of the  detenu in the reasonable belief that there was concealment of  more smuggled  gold  in the said house. During this  search,  the detenu  pointed out to the Superintendent one  packet  which had  been placed in the thatched roofing of his  house.  The Superintendent took out the packet and it was found contain- ing  four  gold  ingots bearing  foreign  markings  weighing 466.400  gms. with 24 carat purity, all to the value of  Rs. 1,14,268. The detaining authority taking into  consideration of  the seizure effected on two occasions and the  statement of  the detenu admitting his involvement in the  prejudicial activities mentioned in the grounds of detention reached its subjective  satisfaction  of the necessity  of  passing  the impugned order and passed the same on 7.10.1987. The  appel- lant filed a Writ Petition under Article 950 226  of the Constitution of India for quashing the  impugned order  of  detention,  but was not  successful.  Hence  this appeal.     Of the several grounds urged in the Special Leave  Peti- tion, the learned counsel appearing on behalf of the  appel- lant stressed only the following two contentions seeking  to set aside the order of detention.

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                (1)  As  there is no proximity in  time  to               provide  a rational nexus between the  alleged               prejudicial  activity, that is the seizure  of               the gold biscuits on 30.11.1986 and the  pass-               ing  of the impugned order of detention  after               11 months i.e. on 7.10.1987 and as there is no               reasonable and satisfactory explanation  given               by  the  first Respondent for this  undue  and               unreasonable delay, the order is liable to  be               quashed on the ground that the credible  chain               between  the grounds of the  alleged  criminal               activities  and  the purpose of  detention  is               snapped.  Further the unreasonable  and  unex-               plained delay between the date of the order of               detention on 7.10.87 and the date of arrest of               the  detenu  after  a lapse  of  3  months  on               18.1.1988  throws  considerable doubt  on  the               genuineness of the subjective satisfaction  of               the  detaining authority leading to an  infer-               ence  that there was no real and genuine  sub-               jective satisfaction as regards the  necessity               to detain the detenu with a view to preventing               him from acting in prejudicial manner.                  (2)  The  representation submitted  by  the               detenu  to the third Respondent  on  25.1.1988               challenging  the impugned order  clamped  upon               him had been disposed of by a delay of 72 days               i.e.   on  11.4.1988 and this long and  avoid-               able delay vitiates the order of detention  as               being  violative of Article 22(5) of the  Con-               stitution of India.     We  shall  now deal with the first contention  which  is referred  under ground Nos. II & III of the Grounds  in  the Special Leave Petition which read thus:               "For  that the High Court ought to  have  seen               that the petitioner was detained on the  basis               of  a  alleged solitary incident  occurred  on               30.11.1986 and the detention order was  passed               after  lapse of 11 months, i.e. on  7.10.1987,               and  the petitioner was arrested and  detained               on 19.1.1988."               "For  that the High Court ought to  have  seen               that there was               951               no proximity between the alleged incident  and               subsequent detention. The time factor has  not               been considered by the detaining authority and               he has mechanically passed the detention order               without  paying  any attention  to  the  loose               grounds and quick sands in the reports of  the               sponsoring officer."     The  above two contentions are sought to be answered  by the first Respondent in his counter stating that the  inves- tigating officer had to question a number of persons and  to conduct  extensive search of various premises  in  different places  in connection with the information  gathered  during interrogation  and the Superintendent issued summons to  the brothers of the detenu, namely, Haneefa and Abdul Rahman for appearance  on  10.3.87 and 3.3.87 respectively,  but  Abdul Rahman was absconding and that on 10.2.87, the statement  of C.K. Madhavan referred to in the statement of the detenu was recorded  and  that  on 18.5.1987 show  cause  notices  were issued  to persons connected with this case and  immediately after  completion of the investigation the Customs  authori- ties  sponsored the proposal for detention of the detenu  by

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their  letter  dated  26.8.1987 and that  the  proposal  was screened by the Screening Committee on 11.9.1987 and  there- after the detention order was passed on 7.10.1987.     Coming to the delay in securing the detenu by arrest the explanation is given as follows:               "The  detention  order was  forwarded  to  the               Malappuram  Superintendent of Police  for  its               execution  by  letter dated  9.10.  1987.  The               Police executed the order on 18.1. 1988.  From               the  above facts it is clear that there is  no               delay  in  passing or executing the  order  of               detention  as  alleged  in  the  petition  for               Special Leave to Appeal." There  is  no denying the fact that the impugned  order  has been  passed after lapse of 11 months from the date of  sei- zure of the eleven gold biscuits from the back courtyard  of the  house of the detenu. As repeatedly pointed out by  this court  that there is no hard and fast rule that  merely  be- cause there is a time lag between the offending acts and the date of order of detention, the causal link must be taken to be  snapped  and the satisfaction reached by  the  detaining authority  should be regarded as unreal, but it all  depends upon the facts and circumstances of each case and the nature of  the explanation offered by the detaining  authority  for the delay that had occurred in passing the 952 order. There is a catena of decisions on this point, but  we feel  that  it is not necessary to  recapitulate  all  those decisions except a salient few. This court in Golam  Hussain alias Garna v. Commnr. of Police of Calcutta & Ors.,  [1974] 4  SCC 530 wherein there was a time lag of 6 months  between the  incident and the date of order of detention  while  an- swering a similar contention, laid down the ratio of proxim- ity as follows:               "No  authority,  acting  rationally,  can   be               satisfied,   subjectively  or  otherwise,   of               future  mischief merely because long  ago  the               detenu had done something evil. To rule other-               wise is to sanction a simulacrum of a statuto-               ry  requirement.  But no  mechanical  test  by               counting the months of the interval is  sound.               It  all  depends  on the nature  of  the  acts               relied on, grave and determined or less  seri-               ous and corrigible, on the length of the  gap,               short or long, on the reason for the delay  in               taking preventive action, like information  of               participation  being  available  only  in  the               course of an investigation. We have to  inves-               tigate whether the causal connection has  been               broken in the circumstances of each case. Gora               v. State of West Bengal, [1975] 2 SCR 996  has               held  thus: There is, therefore, no  hard  and               fast rule that merely because there is a  time               lag of about six months between the ’offending               acts’ and the date of the order of  detention,               the causal link must be taken to be broken and               the satisfaction claimed to have been  arrived               at by the District Magistrate must be regarded               as  sham  or unreal. Whether the acts  of  the               detenu  forming  the basis for arriving  at  a               subjective  satisfaction  are  too  remote  in               point of time to induce any reasonable  person               to  reach  such subjective  satisfaction  must               depend on the facts and circumstances of  each               case. The test of proximity is not a rigid  or

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             mechanical  test  to  be  blindly  applied  by               merely  counting the number of months  between               the  ’offending acts’ and the order of  deten-               tion.  It is a subsidiary test evolved by  the               court for the purpose of determining the  main               question  whether the past activities  of  the               detenu  is  such  that from  it  a  reasonable               prognosis can be made as to the future conduct               of the detenu and its utility, therefore, lies               only  in so far as it subserves  that  purpose               and it cannot be allowed to dominate or  drawn               it. The prejudicial act of the detenu may in a               given  case be of such a character as to  sug-               gest that it is a part of an organised  opera-               tion of a complex of agencies collaborating               953               to  clandestinely and secretly carry  on  such               activities  and in such a case  the  detaining               authority  may reasonably feel satisfied  that               the  prejudicial act of the detenu  which  has               come to light cannot be a solitary or isolated               act,  but must be part of a course of  conduct               of such or similar activities clandestinely or               secretly  carried on by the detenu and it  is,               therefore, necessary to detain him with a view               to  preventing  him  from  indulging  in  such               activities in the future."                   In  Hemlata  Kantilal  Shah  v.  State  of               Maharashtra 1981 4 SCC 647, this Court held:               "Delay  ipso  facto  in passing  an  order  of               detention  is not fatal to the detention of  a               person,  for,  in certain cases delay  may  be               unavoidable  and reasonable. What is  required               by law is that the delay must be satisfactori-               ly examined by the detaining authority."     See  also SK Serajul v. State of West Bengal,  [1975]  2 SCC  78;  Rekhaben Virendra Karadia v. State  of  Gujarat  & Ors.,  [1979]  2 SCR 257; Harnek Singh v. State  of  Punjab, [1982]  1  SCC 116: Shiv Ratan Makin v. Union of  India  and Others, [1986] 1 SCC 40l; Smt. K. Aruna Kumari v. Government of  Andhra Pradesh and Ors., [1988] 1 SCC 296  and  Rajendra Kumar Natvarlal Shah v. State of Gujarat and Others,  [1988] 3 SCC 153.     In a recent decision in Yogendra Murari v. State of U.P. and  Others 1988 (4) SCC 559, this Court has reiterated  the earlier view consistently taken by this Court observing:                           ".........   it  is not  right  to               assume  that an order of detention has  to  be               mechanically struck down if passed after  some               delay   ............  It is necessary to  con-               sider  the  circumstances in  each  individual               case  to find out whether the delay  has  been               satisfactorily explained or not."     The conspectus of the above decisions can be  summarised thus:  The question whether the prejudicial activities of  a person necessitating to pass an order of detention is proxi- mate  to  the time when the order is made or  the  live-link between the prejudicial activities and the purpose of deten- tion  is snapped depends on the facts and  circumstances  of each case. No hard and fast rule can be precisely formulated that  would  be applicable under all  circumstances  and  no exhaustive 954 guidelines can be laid down in that behalf. It follows  that the  test of proximity is not a rigid or mechanical test  by

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merely counting number of months between the offending  acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the  pass- ing of detention order, the Court has to scrutinise  whether the  detaining authority has satisfactorily examined such  a delay  and afforded a tenable and reasonable explanation  as to  why  such a delay has occasioned, when  called  upon  to answer and further the Court has to investigate whether  the causal  connection has been broken in the  circumstances  of each case.     Similarly  when there is unsatisfactory and  unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would  throw considerable  doubt  on the genuineness  of  the  subjective satisfaction of the detaining authority leading to a legiti- mate  inference that the detaining authority was not  really and genuinely satisfied as regards the necessity for detain- ing the detenu with a view to preventing him from acting  in a prejudicial manner.     In  the light of the above proposition of law, we  shall now  examine the first contention which has been raised  for the  first time before this Court. From the reading  of  the counter  affidavit filed on behalf of the first  Respondent, it  is  seen that the detaining authority has  attempted  to explain  the laxity that has occasioned in passing  the  im- pugned  order, but miserably failed in explaining the  delay of  three months in securing the arrest of the  detenu  from the  date  of the passing of the order,  and  keeps  stunned silence on that score. The learned counsel appearing for the first respondent when queried by this Court whether he could give any reason for this undue delay in arresting the detenu on 18.1.1988 in pursuance of the impugned order of detention made on 7.10.1987, he has frankly admitted that he could not do so--rightly so in our view--in the absence of any  expla- nation  in  the  counter affidavit.  The  Superintendent  of Police, Malapurram to whom the detention order was forwarded for  execution  has not filed any supporting  affidavit  ex- plaining  the  delay in securing the arrest of  the  detenu. Under  these circumstances, we hold that leaving  apart  the question of delay in passing the order of detention from the date  of the seizure of the gold, the fact remains that  the detaining authority has failed to explain the long delay  in securing  the arrest of the detenu after three  months  from the  date  of the passing of the detention  order  and  this non-explanation  in our view throws a considerable doubt  on the  genuineness of the subjective satisfaction of  the  de- taining authority 955 vitiating the validity of the order of detention.     The next contention stressed by the learned counsel  for the appellant is with regard to the delay of 72 days in  the disposal of the representation made by the appellant to  the third respondent on 25.1. 1988. This contention is raised in ground Nos. VIII and IX of the Grounds in the Special  Leave Petition. This is resisted by the third respondent in  para- graph  8 of his counter stating that a representation  dated 2.2.1988 was received in the COFEPOSA Section of Ministry of Finance  on 16.2.1988 with a letter dated 5.2.1988 from  the Government  of Kerala; that as certain information  was  not available  with  the Central Government,  the  Collector  of Customs, was asked to get a copy of the representation  from the State Government and to send his comments; that  Collec- tor  of Customs, informed the Central Government by a  telex message  dated 1.3.1988 which was received in  the  COFEPOSA Section  on 8.3.1988 informing that the  representation  was

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not  available with the Home Department; that  thereafter  a copy of the representation was forwarded to the Collector of Customs  by post on 8.3.1988; that the comments of the  Col- lector were received back on 28.3.1988; that then the repre- sentation  along  with the comments were placed  before  the Joint Secretary, COFEPOSA Section on 30.3.88, who  forwarded the  same to the Minister of State for Revenue on  the  same day  and on 4.4.88 the Minister of State forwarded his  com- ments  to the Finance Minister who considered  and  rejected the  representation  on 8.4.88. According to the  third  Re- spondent,  the representation was  considered  expeditiously and  as such there is no violation of Article 22(5)  of  the Constitution of India.     The learned counsel for the appellant has explained that the  representation was submitted originally  on  25.1.1988, but  was got back and resubmitted on 2.2.1988. According  to him,  it  is  surprising that the  said  representation  was received  by the third respondent only on 16.2.1988 after  a considerable delay of two weeks and thenceforth there was  a considerable delay from 16.2.88 to 28.3.88 in receiving  the comments of the Collector of Customs, and again there was  a delay  of  7 days in forwarding the  representation  to  the Minister of State for Revenue with the comments of the Joint Secretary, COFEPOSA Section. The long interval in receipt of the  representation  and the comments of  the  Collector  of Customs, Cochin indicate the casual and indifferent attitude displayed  by  the authorities concerned  dealing  with  the representation. In  our opinion, the manner in which the representation  has been 956 dealt with reveals a sorry state of affair in the matter  of consideration  of  the representation made  by  the  detenu. Further  we  fail to understand why such a long  delay  from 16.2.88  to 28.3.88 had occasioned in getting  the  comments from  the Collector of Customs. The only futile  explanation now  offered by the third respondent is that this delay  had occasioned because the Collector of Customs was not able  to get  a copy of the representation from the Home  Department, Kerala and thereafter the Collector got a copy of the repre- sentation on being forwarded by the third respondent on 8.3. 1988.  Even then there is a delay of 20 days in getting  the comments  of  the  Collector and that delay is  not  at  all explained.     This  Court  in Rama Dhondu Borade v.  Shri  V.K.  Saraf Commissioner  of  Police & Ors., [1989] I Scale  Vol.  4  22 after referring to various decisions, has observed thus:               "The detenu has an independent  constitutional               right to make his representation under Article               22(5)  of  the Constitution of  India.  Corre-               spondingly, there is a constitutional  mandate               commanding the concerned authority to whom the               detenu forwards his representation questioning               the correctness of the detention order clamped               upon  him and requesting for his  release,  to               consider the said representation with reasona-               ble dispatch and to dispose the same as  expe-               ditiously  as  possible.  This  constitutional               requirement must be satisfied with respect but               if this constitutional imperative is  observed               in breach, it would amount to negation of  the               constitutional  obligation rendering the  con-               tinued detention constitutionally  impermissi-               ble  and  illegal, since such a  breach  would               defeat the very concept of liberty--the highly

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             cherished right--which is enshrined in Article               21 of the Constitution."               "   .......  What is reasonable  dispatch  de-               pends  on the facts and circumstances of  each               case  and  no hard and fast rule can  be  laid               down in that regard. However, in case the  gap               between the receipt of the representation  and               its  consideration  by  the  authority  is  so               unreasonably long and the explanation  offered               by  the authority is so  unsatisfactory,  such               delay could vitiate the order of detention."     Bearing in mind the above principle when we approach the facts of the present case, we are of the firm view that  the representation of 957 the detenu has not been given prompt and expeditious consid- eration,  and  was  allowed to lie  without  being  properly attended  to. The explanation now offered by the  third  re- spondent that the delay has occurred in seeking the comments of  the  Collector of Customs etc. is not a  convincing  and acceptable explanation. In our view the delay in 72 days  in the absence of satisfactory explanation is too long a period for  ignoring  the indolence on the part  of  the  concerned authority.  Hence  we  hold that the  unexplained  delay  in disposal of the representation of the detenu is violative of Article  22(5) of the Constitution of India,  rendering  the order of detention invalid.     For  all  the  above mentioned reasons,  we  allow  this criminal  appeal by setting aside the judgment of  the  High Court, quash the impugned order of detention and direct  the detenu to set at liberty forthwith. Y. Lal                                 Appeal allowed. 958